Decedent: A decedent is an individual who has passed away.
Dementia: This is a brain disorder characterized by a decline in several higher mental functions (e.g. memory, intellect, personality) that causes significant impairments in daily functioning that are apparent to others who know the affected person well. Most forms of dementia are progressive and irreversible. Although up to 50 diseases affecting the brain can cause dementia, the most common causes are Alzheimer’s disease, vascular disease, mixed Alzheimer’s disease and vascular disease, dementia with Lewy bodies, Frontotemporal dementia and dementia associated with excessive consumption of alcohol. The prevalence of dementia rises with age, doubling every 5 years between ages 60 and 90. Common features of dementia include poor memory for recent events, disorientation in time and (later) in place, impaired ability to deal with everyday problems and to undertake routine tasks (e.g. driving, cooking, paying bills, doing housework) that were previously handled competently, impairments of communication skills (understanding language, speaking, writing), and changes in mood and personality.
Diminished Capacity: A contention of diminished capacity means that although the testator was not incapacitated, due to emotional distress, physical condition, mental infirmity or other factors, he could not fully comprehend the nature of his testamentary act.
Disbursement: The transfer of assets from an estate or trust to creditors.
Disclaim: To refuse to accept (or renounce) a gift or benefit.
Distribution: The transfer of assets from an estate or trust to beneficiaries.
Donee: The recipient of a gift.
Donor: One who makes a gift or one who creates a trust.
Durable Power of Attorney for Health Care: This instrument is used to appoint a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide informed consent. (Note: contrast with a medical directive where you give “doctors and hospitals” certain authority.)
Duress: The use of force, false imprisonment or threats (and possibly psychological torture or “brainwashing”) to compel someone to act contrary to his/her wishes or interests.
Elder Abuse: One of the more commonly accepted definitions of elder abuse is “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.”
Elder Law: This is a legal practice specialty covering estate planning, Wills, Trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other concerns involving seniors.
Embezzlement: The misappropriation of money or assets held in Trust by the Trustee.
Estate: Most commonly used to describe the property of a decedent that is administered by an executor or administrator and distributed according to the will or laws of intestacy (sometimes called the “probate estate”). The term is not limited to the property of a decedent, and can also be used to refer to the property of a minor, incapacitated person, bankrupt, or trustee that is administered by a guardian or trustee. Or it can be used to describe certain interests in property (such as “life estate”). And it is frequently used to describe all of the property subject to estate tax at death (the “gross estate” or “taxable estate”).
Estate Plan: A written set of documents setting out an estate owner’s instructions for disposition and administration of his or her property at his death, incapacity or total disability. A good estate plan is more than just a simple Will and Trust. It should also minimize potential estate taxes and fees and set up contingency planning to make sure your wishes regarding health care treatment are followed. Estate plans typically include Wills, Trusts, power of attorneys and medical directives.
Executor (Executrix): The person nominated by the decedent and appointed by a probate court to administer the estate of a decedent who leaves a Will. The executor must insure that the decedent’s desires as expressed in the Will are carried out. Generally the duties include gathering and protecting estate assets, locating beneficiaries and potential heirs, collecting and arranging for the payment of estate debts, approving and rejecting creditor claims, making sure personal and estate taxes are paid, and assisting the estate attorney close the estate. (Note: Executrix is Latin for female executor. The term executor, however, is now unisex.)
Family Trust: Also known as a “B” trust, or credit equivalent trust, a family trust is funded with up to the maximum assets that can pass with no tax due, currently $3,500,000.00 (2009). These assets are taxed at death, but since each person has a unified credit, no tax is actually due. Once these assets have been taxed (with no tax due), they are free to grow to any amount and will never be taxed again for estate purposes.
Fiduciary: An executor, administrator, trustee, guardian, conservator, attorney-in-fact, or other person who must manage property or exercise rights or powers for the benefit of others which gives rise to a relationship of trust and confidence.
Fiduciary Duties: A fiduciary duty is the highest standard of care at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom he owes the duty (the “principal”): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents.
Financial Elder Abuse: This is a specific form of a more general crime of financial abuse. Financial abuse is defined in California’s Elder Abuse and Dependent Adult Civil Protection Act (California Welfare & Institutions Code section 15600 et seq.) as “occurring when any person or entity takes, secretes, appropriates or retains real or personal property of an elder or dependent adult with the intent to wrongfully use or defraud, or who assists in doing so.” Financial elder abuse is the perpetration of this crime against seniors and dependent adults, who may be especially vulnerable due to physical or mental incapacity.
Fraud: There are three types of fraud: fraud in the execution, fraud in the inducement, and fraudulent prevention of the making or revocation of a Will or Trust. Fraud invalidates any disposition to the perpetrator of the fraud, or could invalidate the entire instrument. Fraud in the execution occurs when the testator is presented with a document purporting to be something other than what the testator believes. This includes a forgery. Fraud in the inducement occurs when someone perpetrates a fraud on the testator which directly affects the contents of the Will or Trust.
Gift: A gift is anything voluntarily transferred by one person to another without compensation.
Guardian: A guardian is person appointed to take care of a minor or an incapacitated person. There are actually two different types of guardians, guardians “of the person” and guardians “of the estate.”
Guardian of the Estate: A guardian of the estate of a minor or incapacitated person manages the property of the ward for the ward’s benefit. A guardian of the estate must usually be appointed by a court and must usually get permission of the court before spending the ward’s money.
Guardian of the Person: A guardian of the person takes care of the physical needs of the minor or incapacitated person, making sure that the person is housed and fed and kept in good health, both physically and mentally. A guardian of the person of a minor really becomes a substitute parent, providing a home for the minor and making sure that the minor is properly educated.
Health Care Power of Attorney: A document that clearly states what your wishes are if you find yourself needing medical care and you cannot represent yourself. You appoint an agent who will act on your behalf to make sure your wishes are followed.
Heir: One who inherits, or is entitled to succeed to the possession of, any property or funds after the death of its owner; one on whom the law bestows the title or property of another at the death of the latter.
Holographic Will: This is a handwritten Will. Will typically require two attesting witnesses, but in many jurisdictions (states), holographic Wills are treated equally to “witnessed Wills” if the following elements are met: All material terms must be completely handwritten by the testator, there must be evidence that the testator actually created the Will (which can be proved by witnesses, handwriting experts, or other methods), the testator must have had the mental capacity to make the Will (although there is a presumption that a testator had such capacity unless there is evidence to the contrary), the testator must express a desire to direct the distribution of his estate to beneficiarie(s) and it must be signed by the testator.